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Food injury claims – a duty of care to avoid personal injury

19 December 2019

The scope of personal injury claims is ever increasing in relation to potential claims involving food and environmental changes. Our food choices shape who we are and if someone negligently breaches those values they violate our integrity and can pose a danger to our wellbeing.

The general duty of negligence law and personal injury can expand to protect religions and even non-religious groups in relation to the consumption of food products. For example the increased popularity of veganism poses serious questions on how the law of personal injury should be able to offer protection for vegan.

Let me give a hypothetical scenario. A vegan enters a restaurant and orders a vegan dish. The restaurant is busy and the chefs are under pressure. They mistakenly serve the vegan, meat and don’t realise until it is too late. The vegan customer gets very upset as they have unknowingly eaten meat. Their identity as a vegan has been unintentionally violated.

Another scenario is a consumer who has a nut allergy and by accident, is served nuts, inducing them into an allergic reaction. How do these scenarios give rise to a personal injury claim?

How does the case of Bhamra v Dubb egg allergy relate to other food injury claims?

The case of Bhamra v Dubb has expanded the law in this area. An observant Sikh who did not eat eggs for religious reasons, as well as having an egg allergy was served eggs at a wedding by a caterer and died. Commentators have emphasised the importance of this case in expanding the law that the caterer owed the consumer a ‘duty of care to avoid personal injury’. The consumer relied on the caterer not to serve eggs as was communicated prior to the wedding.

This same element of reliance could be transferred to vegans who rely on restaurants being able to serve them dishes that will not contain meat. The only barrier to these unorthodox claims is that the victim must prove damage. Currently, damage to one’s autonomy alone is insufficient and this is where it differentiates from the case of Bhamra where death was suffered.

The psychiatric issues from being served the wrong food could give rise to the successful bringing of personal injury claims against restaurants. It is likely a vegan served meat would have to suffer a recognised psychiatric illness to be able to sue the restaurant for their personal injury for example, depression would need to be diagnosed rather than only suffering damage to their autonomy.

The injury element of personal injury will be conservatively applied by the courts as they recognise that mistakes are part of everyday life. Although, grave mistakes that have serious physical and mental effects on consumers should be accounted for.

Reliance on food providers that the food they are serving is represented correctly is crucial in avoiding a personal injury. New regulations will come into effect from October 2021 that will require businesses to provide full ingredient and allergen labelling on foods which are pre-packed for direct sale. The consequences of these regulations are unknown but may shift the onus back to the consumer in checking the food is safe to eat. These regulations are unsurprising given the high profile deaths of Owen Carey and Natasha Ednan Lapreouse who died as a consequence of eating food labelled safe but with insufficient food labelling at Byron Burger and Pret.

It is unknown whether personal injury claims from food will be more common. What is known is that one should always check the ingredients carefully before ordering and make the waiter aware of any allergies.

If you are injured as a result of a food allergy and the accident was the fault of a third party you could be entitled to compensation. Please contact our personal injury claim specialists on 01483 464222 or alternatively email enquiries@barlowrobbins.com

Sources
  • Byron burger death: Owen Carey 'died after eating buttermilk' (view page)
  • Food allergen labelling changes become law (view page)
  • Pret allergy death: Parents 'delighted' by 'Natasha's law' plan (view page)
  • Keren-Paz, Tsachi, Liability for Consequences, Duty of Care and the Limited Relevance of Specific Reliance: New Insights on Bhamra v Dubb (2016). Journal of Professional Negligence, Vol 32, pp. 48-65, 2016. (view page)
  • Bhamra v Dubb (t/a Lucky Caterers) [2010] EWCA Civ 13 (view page)